RYAN & KUEHLER PLLC

Natalie Kuehler

RYAN & KUEHLER PLLC

Mark Ryan

Environmental Law and Complex Litigation

An Interesting WQS Case in Washington

The opinion below, Washington v. EPA, is a typical motion to intervene. What is interesting about the case are the underlying substantive issues, which have not yet been resolved. In 2016, EPA disapproved in part the state's human health water quality criteria and proposed a substitute standard. In 2017, industry, likely expecting a more sympathetic ear in the Trump Administration, asked EPA to reconsider, which it did in 2019, adopting the previously rejected criteria, citing its "inherent authority." The state sued EPA, claiming EPA did not follow required CWA procedure in revising the standards. My observation of the Trump EPA over the last three years is that they've been eager to adopt industry-favorable standards, but sloppy on procedure. The first WOTUS suspension rule is a good example. I haven't read the briefs in this case, but I suspect the state's case has merit. If Trump wins a second term, it will be interesting to see if the agency develops a better appreciation for procedure or it continues its hellbent march toward softening regulations, regardless of the likelihood of success in the courts.

Washington v. EPA, 2020 WL 1955554 (W.D. Wash. 2020) (granting motion by industry groups to intervene in case by state challenging EPA’s 2019 decision to revise and approve state water quality criteria that the agency had disapproved in 2016)

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